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there is no heir be no other case devised, wherein there is not some owner
that can take,
the lands vest

of the land appointed by the law. In the case of a sole cor-
in the king, or poration, as a parson of a church, when he dies or resigns,
in the lord by
escheat. though there is no actual owner of the land till a successor

be appointed, yet there is a legal, potential ownership, sub-
sisting in contemplation of law; and when the successor is
appointed, his appointment shall have a retrospect and re-
lation backwards, so as to entitle him to all the profits
from the instant that the vacancy commenced (6). And, in
all other instances, when the tenant dies intestate, and no
other owner of the lands is to be found in the common
course of descents, there the law vests an ownership in the

ng, or in the subordinate lord of the fee, by escheat (7).
As to lands cre- So also in some cases, where the laws of other nations give
ated by the ris-
ing of islands in a right by occupancy, as in lands newly created, by the rising
rivers, or by al- of an island in the sea or in a river, or by the alluvion or de-
luvion, &c.

reliction of the waters; in these instances the law of Eng-
land assigns them an immediate owner. For Bracton tells
us (k), that if an island arise in the middle of a river, it belongs
in common to those who have lands on each side thereof;
but if it be nearer to one bank than the other, it belongs only
to him who is proprietor of the nearest shore: which is
agreeable to, and probably copied from, the civil law(1). Yet
this seems only to be reasonable, where the soil of the river
is equally divided between the owners of the opposite shores:
for if the whole soil is the freehold of any one man, as it
usually is whenever a several fishery is claimed (m), there it
seems just (and so is the constant practice), that the eyotts or
little islands, arising in any part of the river, shall be the
property of him who owneth the piscary and the soil. How-
ever, in case a new island rise in the sea, though the civil
law gives it to the first occupant (n), yet ours gives it to the
(k) 1. 2, c. 2.

(m) Salk. 637. See pag. 39.
(1) Inst. 2. 1. 22.

(n) Inst. 2. 1. 18.

(6) See ante, note (10) to chapter 7,

(7) See ante, chapter 15, with the notes thereto.

p. 107.

king (0). And as to lands gained from the sea, either by alluvion, by the washing up of sand and earth, so as in time to make terra firma; or by dereliction, as when the sea shrinks back below the usual water-mark; in these cases the law is held to be, that if this gain be by little and little, by small and imperceptible degrees, it shall go to the owner of the land adjoining (p) (8). For de minimis non curat lex: and, besides, these owners, being often losers by the breaking in of the sea, or at charges to keep it out, this possible gain is therefore a reciprocal consideration for such possible charge or loss. But, if the alluvion or dereliction be sudden and considerable, in this case it belongs to the king; for, as the king is lord of the sea, and so owner of the soil while it is covered with water (9), it is but reasonable he

() Bract. 1. 2, c. 2. Callis of sewers, 22. (p) 2 Roll. Abr. 170. Dyer, 326.

It was

(8) In the modern case of The King ble in its progress, not imperceptible v. Lord Harborough, (3 Barn. & Cress. after a long lapse of time. 106; 4 Dowling & Ryl. 807), it was This decision was confirmed by the decided, that land not suddenly dere- House of Lords, on appeal. (See 5 lict, but formed by alluvion of the sea, Bingh. 170). imperceptible in its progress, belongs to So, in Scratton v. Brown, (5 Barn. the owner of the adjoining demesne & Cress. 505; S. C. 6 Dowl. & Ryl. lands, and not to the crown.

545), where a tenement, sea grounds, held, that the intimation thrown out by oyster layings, shores and fisheries, deLord Hale, in his Treatise de jure scribed by certain boundaries, were maris, where he speaks of land gained granted by deed, it was held, that the by alluvion as belonging generally to right of soil in the sea-shore passed to the crown,

"unless the alluvion be the grantees; and that, as the sea, so insensible that it cannot by any subsequently to the date of the deed, means be found that the sea was had imperceptibly and gradually enthere,” was not to be understood as croached upon the land, that accretion meaning that the crown would be enti- also passed as an incident to that which tled, if, at the end of a century, or belonged to the grantee. even half a century, the accretion was (9) But, the soil, on which the sea perceptible by known limits or marks: ebbs and flows, that is, the soil beand that the word “ imperceptible,” tween the high water mark and low as connected, in the record then be- water mark, may be parcel of the fore the court, with the words “slow manor of a subject. (Sir Henry Conand gradual," was to be taken as ex- stable's case, 5 Rep. 107 b. and see pressive only of the manner of the ac- Johnson v Barrett, Aleyne, 11). cretion, and as meaning impercepti

should have the soil, when the water has left it dry (9). So that the quantity of ground gained, and the time during which it is gaining, are what make it either the king's or the subject's property. In the same manner, if a river (10), running between two lordships, by degrees gains upon the one, and thereby "leaves the other dry, the owner who loses his ground thus imperceptibly has no remedy: but if the course of the river be changed by a sudden and violent flood, or other hasty means, and thereby a man loses his ground, it is said that he shall have what the river has left in any other place, as a recompence for this sudden loss (r), And this law of alluvions and derelictions, with regard to rivers, is nearly the same in the imperial law (s); from whence indeed those our determinations seem to have been drawn and adopted: but we ourselves, as islanders, have applied them to marine increases; and have given our sovereign the prerogative he enjoys, as well upon the particular reasons before mentioned, as upon this other general ground of prerogative, which was formerly remarked (1), that whatever hath no other owner is vested by law in the king.

(9) Callis, 24, 28. (r) Ibid. 28.

(s) Inst. 2. 1. 20——24.
(1) See Vol. 1, pag. 298.

(10) Or an arm of the sea. (2 Roll's Ab. 169, pl. 6).




A THIRD method of acquiring real property by purchase is of title by prethat by prescription (1); as when a man can shew no other scription.

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(1) Bracton (in the 22nd chapter of this day be raised by grant: for, the his 2nd book,) says,

' rerum corpora- law allows prescriptions, only to supply lium dominia transferentur, sine titulo the loss, or supposed loss, of a grant. aut traditione, per usucaptionem, scili. Upon usage from time to which the cet, per longam, continuam, et pacificam memory of man runneth not to the possessionem, ex diuturno tempore. Cono contrary, the law presumes a grant tinuam dico, ita quod non sit interrup- and a lawful beginning, and allows ta: intei rumpi enim poterit multis mo- such usage for a good title; but still, it dis, sine violentiâ adhibitá, et per talem is but in supply of the loss of a grant: interruptionem, nunquam acquiret pos- and therefore, for such things as can sidens, ex tempore, liberum tenementum. have no lawful beginning, nor be crePacificam dico, quia si contentiosa fuerit, ated at this day by any manner of idem erit quod prius, si contentio fuerit grant, or reservation, or deed that can justa, et diligenter prosecuta.Lord be supposed, no prescription is good. Coke translates, and adopts this ac- (See the next note). count of the qualities and incidents of The Roman law made a difference prescription, in his commentary upon between præscriptio, in its general and Littleton. (1 Instit. 113).

extended sense, and that kind of it In the case of Potter v. Sir Henry which they distinguished by the name North, (1 Ventr. 386), it was said, a of usucapio. By usucapio, they meant prescription that goes to claim a real the manner of acquiring the property of interest in solo alieno, is a title; and as things, by the effect of time. Prea title must be strictly pleaded; it is scriptio had also the same meaning, not like a prescription by way of dis- but it signified, moreover, the manner charge, or for an easement. Nothing of acquiring and losing all sorts of can be prescribed for, that cannot at rights and actions, hy the same effect VOL. II.


tween custom

title to what he claims, than that he, and those under whom he claims, have immemorially used to enjoy it. Concerning customs, or immemorial usages, in general, with the several requisites and rules to be observed, in order to prove their existence and validity, we inquired at large in the preceding part of these commentaries (a). At present therefore I shall only, first, distinguish between custom, strictly taken, and prescription; and then shew what sort of things may be

prescribed for. Distinction be. And, first, the distinction between custom and prescripand prescription. tion (2) is this: that custom is properly a local usage, and

not annexed to any person ; such as a custom in the manor of Dale that lands shall descend to the youngest son: prescription is merely a personal (3) usage; as, that Sempronius and his ancestors, or those whose estate he hath, have used time out of mind to have such an advantage or privilege (6). As for example, if there be a usage in the parish of Dale, that all the inhabitants of that parish may dance on a certain close, at all times, for their recreation, (which is held (c) to be a lawful usage), this is strictly a custom, for

it is applied to the place in general, and not to any parti[ * 264 ) cular persons: but if the *tenant who is seised of the manor

of Dale in fee, alleges that he and his ancestors, or all those

(a) See Vol. I. pag. 75, &c.

(6) Co. Litt. 113.

(c) 1 Lev. 176.

of the time regulated by law. (Domat's scription is not co-existent with general Civil Law, tit. 7, sect. 4 & 5. Turn- custom, but derogatory from general bull's note to Heineccius, book 1, ch. custom; and its origin must have been 12). We do not make this difference; founded on a grant, now evidenced by prescription, with us, is the word ap- immemorial usage; for which reason, plied both to the manner of acquiring no claim by prescription can be mainthe property of things, and to that of tained, but such as might have been acquiring and losing all sorts of rights. the subject of a legal grant: (see the

(2) Custom and prescription, though last note): but this rule does not alconfounded in common language, are, ways hold with respect to custom. strictly speaking, very distinct in their (Weekly v. Wildman, 1 Lord Raym. nature; (Baker v. Bearman, W. Jones, 407. Bennett v. Read, 1 Anstr. 325). 367); it is true, that immemorial usage (3) A body politic or corporate may is essential to them both; but, pre- prescribe. (Co. Litt. 113 b).

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